M MANICKAM PILLAI Vs. KUPPULAKSHMI

JUDGEMENT

(1.) THE plaintiff is the appellant in this second appeal against the reversing judgment in A.S.No.149 of 1981 on the file of the District Judge, Coimbatore. the Suit O.S.No.773 of 1978 on the file of the District Munsif, Coimbatore, is (i) for setting aside the order, dated 20.12.1977 in the claim petition under O.21, Rule, 58, Civil Procedure Code, E.A. No.367 of 1977 in E.P. No. 299 of 1975 in O.S.No.755 of 1971, (ii) and, for directing defendants 1 to 6 and 8 to pay compensation of Rs. 1,000 to.-the- plaintiff for wrongful, attachment and wrongful sale of the suit property. THE said dismissal was no doubt, confirmed in C.R.P.No.678 of 1978 by this Court on 4.4.1978. However, since the attachment in question was effected on 27.11.1975 and since to such a case the law existing prior to the 1976 amendment of C.P.C. was alone applicable, the present suit has been filed under Rule 63 of O.21, C.P.C. (THE said Rule 63 was deleted by the above said 1976 amendment, the present suit is strictly under the said Rule 63, though it is wrongly mentioned as a suit under O.21, Rule 58(5), C.P.C. now existing.

(2.) THE plaintiff is the purchaser of the suit property under Ex.B-1 sale deed, dated 29.1.1970 for Rs.4,700 from one Subbammal who was the judgment debtor in the abovesaid O.S.No.755 of 1971 and whose legal representative Veerammal is the 7th defendant in the present suit. As per the said sale deed the plaintiff retained a sum of Rs.2,000 for the discharge of a prior debt of the abovesaid Subbammal due to one Sivakami Ammal. THE said Sivakami Ammal got a decree against Subbammal in O.S.No.755 of 1971 in respect of the said debt and only in that suit the attachment of the suit property was made as stated above on 27.11.1975. THE legal representatives of the said decree-holder Sivakami Ammal are defendants 1 to 6 in the present suit. To realise the said decree amount the suit property has also been subsequently sold to the 8th defendant in the present suit. THE said 8th defendant is the 8th respondent in the second appeal, while defendants 1 to 6 are respondents 1 to 6 herein and the 7th defendant is the 7th respondent herein. But all the respondents herein excepting the 8th respondent, the court auction purchaser of the suit property, remain unrepresented. THE said court auction purchaser alone filed the abovesaid First Appeal No. 149 of 1981.

(3.) MELA Ram and Sons v. Ram Das Joshi and Sons, I.L.R. 1943 Lah. 17: A.I.R. 1942 Lah. 275: 44 P.L.R. 415 and U.P.Govemment v. Manmohan Das, 1941 A.L.J. 518:I.L.R. 1941 All 691:1941 A.L.W. 880.A.I.R. 1941 All. 345:196 I.C. 425 and Sheonandan Lal v. Zainal Abdin, I.L.R. (1915)42 Cal. 849 have actually no application to the present case. In MELA Ram and Sons v. Ram Das Joshi and Sons, I.L.R. 1943 Lah. 17: A.I.R. 1942 Lah. 275:44 P.L.R. 415, the attachment sought for was only the 'amount left'with the vendee and not the property as such, sold to the vendee. The said attachment was no doubt, correct. But in the present case the property as such which has been sold to the vendee/plaintiff, is sought to be attached. That cannot be done. U.P.Govemment v. Manmo-han Das, 1941 A.L.J. 518. I.L.R. 1941 All 691:1941 A.L.W. 880. A.I.R. 1941 All. 345:196 I.C. 425, is not a case of a creditor of the vendor trying to enforce the charge under Sec.55(4)(b) of the Transfer of Property Act available to the vendor. So, that has no application to the present case. Sheonandan Lal v. Zainal Abdin, I.L.R. (1915)42 Cal. 849, only says that the abovesaid vendor's charge can be transferred. But in the present case there is no such transfer. Nor is there any plea to that effect. Even otherwise, the said decision will have no application to the question involved in the present case.